33 Colo. 475 | Colo. | 1905
delivered the opinion of the court.
Action was brought under section 3776 of Mills’ Annotated Statutes, which is as follows: “When, by mistake or wrongful act of the treasurer, clerk or assessor, or from double assessment, land has been sold on which no tax was due at the time, the county shall hold the purchaser harmless by paying him the amount of principal, and interest at the rate of twenty-five per cent, per annum; and the treasurer, clerk or assessor, as the case may be, and his sureties on his official bond, shall he liable to the county for all losses sustained by the county from sales made through the (their) mistake or misconduct.”
Some time prior to the filing of the complaint, Perley Dodge bought, at tax sale, certain lands in the county of Chaffee, and, having paid the subsequent taxes thereon, a certificate of purchase was issued to him on the 3d of December, 1894, by the county treasurer of Chaffee county. A suit was brought, by the owners of the land, in the district court for the purpose of having the certificate of tax sale canceled, praying that the plaintiffs be allowed to redeem the land and that the treasurer of the county be enjoined from delivering a deed therefor. The court rendered a judgment declaring the tax certificate void, and granting the injunction. This suit is brought to recover the amount paid at the tax sale, with legal interest since 1894, for the amount of subsequent taxes paid and for one hundred and fifty dollars attorney’s fees. An amendment to the complaint
We are of opinion that the demurrer was properly sustained. The section which requires the county commissioners to hold harmless these purchasers at tax sale, we think, does not include those sales, although void, of taxable property, and that the plaintiff’s remedy is to have, in any suit brought by the owners of the property to redeem, the court fix, as a condition to the setting'aside of the tax certificate, that the plaintiff be required to refund to the purchaser of the tax certificate the amount paid by him, with legal interest. Counsel have cited the case of Hurd v. Hamill, 10 Colo. 174, wherein it was held that this section (3776) authorized recovery from the county of moneys paid at tax sales, and costs and expenses incurred in’ defending a suit against the certificate. We cannot ascertain the status of the premises which, in that case, were sold for taxes. It is stated in the opinion that it is conceded that the assessment of the Cushman property was void by reason of an error of the assessor in making an assessment of the same in 1876. This case is authority for holding that when an assessment is void and the property is subsequently sold at tax sale, the purchaser of the tax certificate may recover from the county the amount paid by him, together with interest at the rate of twenty-five per cent, per annum. But we do not understand from the reading of’ that
It appears in this complaint that the reason the court declared the tax certificate void was that the assessor had valued, assessed and returned said property en masse, without classifying the same in separate tracts and parcels; that said tracts and parcels of land were not adjoining and contiguous, and that said premises were sold for certain personal prop
In the suit brought by the owners of this property to redeem from the tax sale, the court should, as a condition precedent to setting aside the tax certificate, have required the plaintiff to pay to the purchaser. of the tax certificate the moneys paid out by him at the tax sale and the moneys paid by him subsequent to the tax sale, as taxes upon the premises,, together with the interest and penalties prescribed by statute. And if the county commissioners have erroneously charged personal tax upon real estate, and the treasurer of the. county has sold the real estate to pay the personal tax, the county commissioners should refund to such purchaser the amount of taxes on the personal .estate.
We think the demurrer was properly sustained, and the judgment will be affirmed.
Affirmed.
The Chief Justice and Mr. Justice Campbell concur.